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HomeMy WebLinkAbout99-0950 criminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO 99-0950 CRIMINAL TERM :CHARGE: AGGRAVATED v. HARASSMENT BY PRISONER KEYON BOYD :AFFIANT: TPR. LEONARD G. LANDER, Jr. Defendant IN RE: OPINION PURSUANT TO PA. R. A. P. 1925 Before HOFFER, P.J. OPINION HOFFER, P.J.: A jury convicted defendant of Aggravated Harassment by Prisoner on January 26, 2000, after trial. Defendant has appealed to the Superior Court from the order of sentence imposed February 8, 2000. In his statement of maters complained of on appeal, defendant alleges as the only question: "1. As a matter of law, the Commonwealth failed to prove beyond a reasonable doubt that the substance which allegedly struck the victim in this matter was urine." The events of February 27, 1999 are the subject of this case. Defendant's yelling from cell B-2-31 in the Restricted Housing Unit of the State Correctional Institution at Camp Hill attracted notice from corrections officers at 10:20 p.m. Officers Kenneth C. Klaus and William Novak testified that after they heard the defendant yelling and ordered defendant to stop, defendant said to them, "1 got a hot cup full of p**s for you on your next rounds." Novak wrote a misconduct report and then at 11:10 p.m., Klaus served the report upon defendant in his cell. While sliding the report under defendant's cell door, Klaus felt a warm liquid strike his right leg. Klaus testified at trial that the liquid's odor was "an ammonia smell, a urine smell." He heard the defendant say, "The next time you come by, I have a cup of s**t for you." Klaus returned the guardhouse, wiped his trousers with a white paper towel, and then reported to medical to be checked out. Novak testified that he could smell urine and the freshly used white towel was brownish- yellow after Klaus used it to wipe his leg. Klaus then prepared a misconduct report concerning the defendant's throwing what Klaus believed was urine. Due process procedures within the correctional system first required an internal investigation be conducted as to the charge. Pennsylvania State Police Trooper Leonard G. Lander, Jr. conducted the investigation. Trooper Lander testified at trial that according to defendant, the defendant had placed on his cell door a filled cup of coffee, which was primed to spill if a guard rapped upon the door's exterior. The defendant told Lander, and testified at trial, that the coffee cup fell to the floor when Klaus was at defendant's cell, and that the substance that struck Klaus's pant leg was coffee, not urine. Corrections officer William Mays testified that he found a Styrofoam cup in defendant's cell during a search at 1:30 a.m. on February 28, 1999. A defense witness, Nelson Wilson, an inmate in a cell adjacent to defendant's cell, testified at trial that on the night of February 27, 1999, Boyd and Wilson were talking through a floor-level grate in the wall separating their cells. Both had been in the practice of having coffee at night, Wilson testified, using 2 packets of coffee they saved from breakfast. Wilson said that they were lying on the floor, talking through the grate, each with a cup of coffee sitting on the floor or on the door. Wilson also testified that corrections officers are in the habit of kicking cell doom when making their rounds. Wilson testified that Klaus was kicking doom on the night of February 27. Wilson said Klaus kicked Wilson's cell door on Klaus's first round and then kicked defendant's door on the second round. When Klaus kicked defendant's door, Wilson testified, defendant's "coffee fell out on [Klaus]." Wilson testified that he and defendant had discussed what would occur if a corrections officer kicked defendant's door when a cup of coffee was placed there. Wilson said that the defendant intended for the coffee to spill on the corrections officer in such a circumstance, in order to make the corrections officer "want to stop kicking our door." State Correctional Institution at Camp Hill Hearing Examiner John Andrew Andrade testified that defendant had pled guilty to the charge of throwing urine at a corrections officer at the hearing within the prison, following investigation. Defendant testified that he did not plead guilty to throwing urine; instead, defendant contends he pled guilty only to "cussing." Discussion Defendant contends that the prosecution did not prove beyond a reasonable doubt that the substance at issue in this case was urine. The proper 3 standard of review for a claim as to sufficiency of the evidence is whether such evidence would convince the average mind of defendant's guilt beyond a reasonable doubt. Commonwealth v. Hargrave, Pa. Super.. , 745 A.2d 20, 22-23 (2000) (citations omitted). Evidence is viewed in the light most favorable to the Commonwealth as verdict-winner in evaluating a sufficiency of the evidence challenge. Id., m Pa. Super.__, 745 A.2d 20, 22-23 (citations omitted). To sustain a conviction, the Commonwealth must have proved every essential element of the crime beyond a reasonable doubt. Id. Defendant here was convicted of a violation of 18 Pa.C.S.A. § 2703.1 Aggravated Assault by Prisoner. Section 2703.1 provides: A person who is confined in or committed to any local or county detention facility, jail or prison or any State penal or correctional institution or other State penal or correctional facility located in this Commonwealth commits a felony of the third degree if he, while so confined or committed or while undergoing transportation to or from such an institution or facility in or to which he was confined or committed, intentionally or knowingly causes or attempts to cause another to come into contact with blood, seminal fluid, saliva, urine or feces by throwing, tossing, spitting or expelling such fluid or material. 18 Pa.C.S.A. § 2703.1. This is a case of first impression; as yet there is no case authority for 18 Pa.C.S.A. § 2703.1, which was put into effect on February 18, 1998. The crime of aggravated assault by prisoner is established when the Commonwealth has proved beyond a reasonable doubt that the prisoner has intentionally or knowingly caused another to come into contact with urine by 4 throwing, tossing or expelling such fluid. 18 Pa.C.S.A. {}2703.1. Defendant had stipulated to being a prisoner at the time of the incident. Defendant appeals solely as to whether the substance was urine. Circumstantial evidence in this case proves beyond a reasonable doubt that the substance was urine. The Commonwealth demonstrated that the substance at issue was accurately identified through witness testimony. First, Novak and Klaus each testified that they heard the defendant threaten to throw urine. The defendant said, "I've got a cup of hot p**s waiting for you" .... Second, Novak and Klaus further testified that the white towel which Klaus used to wipe his pant leg became brownish-yellow, a color typically associated with urine. Finally, the substance's odor, as identified by Novak and Klaus, was that of urine. While defendant contends in his version of events that the substance was coffee, fact dictates that coffee, similar to urine, has an unmistakable and strong odor. If the defendant had transferred a substance consisting only of warm coffee onto Klaus's pant leg, the determination that the substance was coffee could have been made with equal clarity, based solely upon its odor. While there are many ways to identify a substance using chemical analysis, such analysis was not done here. However, courts are legion in supporting the identification of a substance based on circumstantial evidence, including testimony as to that substance's odor. The Commonwealth Court has held that the odor of methamphetamine on cash was a factor linking the money 5 to illegal drug activity. Commonwealth v. 432,950.00 U.S. Currency Seized From Safe Deposit Box No. 437 Meridian Bank, 101 E. Olney Ave., Philadelphia, Pa., 634 A.2d 697, 160 Pa. Cmwlth. 58. (1993). The Superior Court has held that police may rely on their senses in establishing probable cause, where a police officer entered a premises after smelling the odor of marijuana. Commonwealth v. Pullano, 440 A.2d 122, 295 Pa. Super. 68 (1982). In another case, the Superior Court has stated that testimony as to the odor of gasoline can be a factor in establishing the corpus delicti of arson. Commonwealth v. Shoff, 417 A.2d 698, 273 Pa. Super. 377 (1980). Unlike cases such as Commonwealth v. 432,950.00 U.S. Currency Seized From Safe Deposit Box No. 437 Meridian Bank, 101 E. Olney Ave., Philadelphia, Pa., where the odor of an unusual substance was at issue, an individual need not be qualified as an expert to identify something like urine, gasoline or alcohol. See e.g., Commonwealth v. Chapman, 142 A.2d 469, 186 Pa. Super. 632, (1958) (finding that a person need not be an expert to be able to identify alcohol). The evidence here, when viewed in the light most favorable to the verdict winner, supports the present conviction according the standard of review set forth above. 6